The essential part of the judgment, which is a consent judgment, in the Federal Court and referred to in section 7 of the agreed case, is as follows: “It is further ordered, adjudged and decreed that the town of Littleton pay the costs of this action, and, in addition thereto, pay over to the said Maryland Casualty Company the sum of $8,000 in consideration of which payment the said Maryland Casualty Company is to hold the town of Littleton, Bacon & Moore, and the in-demnitor for Bacon & Moore on account of bond executed for Bacon & Moore hy said Maryland Casualty Company, forever harmless against all lienable claims for material furnished Bacon & Moore and used for the construction work done by. Bacon & Moore under their contract with the town of Littleton.”
It is admitted “that materials under the contract dated 22 May, 1922, between Schofield’s Sons Company and Bacon & Moore were furnished to the town of Littleton on or about 1 October, 1922.”
The main question presented by this appeal is the right of plaintiff to base a suit against Maryland Casualty Company on the consent judgment in the-Federal Court.
In Bank v. Mitchell, ante, 190, we said: “It is well settled in this jurisdiction: If parties have the authority, a consent judgment cannot be changed, altered or set aside without the consent of the parties to it. The judgment, being by consent, is to be construed as any other contract of the parties. It constitutes the agreement made between the parties and a matter of record hy the court, at their request. The judgment, being a contract, can only be set aside on the ground of fraud or mutual mistake,” and cases cited.
In Thayer v. Thayer, 189 N. C., p. 508; 39 A. L. R., 434, it was said: “The suit is properly brought. "We said in Parlier v. Miller, 186 N. C., 503, 119 S. E., 898: We deduce from the authorities that it is well settled that, where a contract between two parties is made for the benefit of a third, the latter may sue thereon and recover, although not strictly a party or privy to the contract.’ Federal Land Bank v. Assurance Co., 188 N. C., 753, 125 S. E., 631.”
*256In the Federal Land Bank case, supra, it was held: “Numerous decisions have established the principle, in this jurisdiction at least, that ordinarily the beneficiaries of an indemnity contract may maintain an action on said contract, though not named therein, when it appears by express stipulation, or by fair and reasonable intendment, that their rights and interests were in the contemplation of the parties and were being provided for at the time of the making of the contract. Dixon v. Horne, 180 N. C., 585; Supply Co. v. Lumber Co., 160 N. C., 428; R. R. v. Accident Corp., 172 N. C., 636; Withers v. Poe, 167 N. C., 372; Voorhees v. Porter, 134 N. C., 591; Gastonia v. Engineering Co., 131 N. C., 363. It was held in Gorrell v. Water Supply Co., 124 N. C., p. 333, that ‘One not a party or privy on a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach.’ This has been affirmed in numerous decisions and is the settled law here and elsewhere.”
In accordance with O. S., 2445 (vol. Ill), Bacon & Moore made a contract bond in the penal sum of $24,167.83 with the town of Littleton. Maryland Casualty Company was surety on the bond. One of the conditions of the bond was: “And shall promptly make payment to all persons supplying said Bacon & Moore labor and materials in the prosecution of the work provided for in such contract.” The plaintiffs furnished Bacon & Moore materials sued for in this action, and have not been paid.
Several creditors of J. H. Bacon and John W. Moore, partners trading as Bacon & Moore, brought suit against them and the town of Littleton and the Maryland Casualty Company in the Superior Court of Halifax County, and followed the procedure set out in C. S., 2445, supra. Plaintiffs did not intervene in twelve months, as required by said statute.
Bacon & Moore brought a suit in the Federal Court (Eastern District of North Carolina) against the town of Littleton. In that suit the consent judgment was rendered and, under the provision in that judgment, this suit is brought.
It will be noted that in the consent judgment Bacon & Moore and the town of Littleton agreed: (1) The town of Littleton pay the cost of action (2) pay over to the Maryland Casualty Company the sum of $8,000. In consideration the Maryland Casualty Company is to hold the town of Littleton, Bacon & Moore and the indemnitor for Bacon & Moore, on account of bond executed for Bacon & Moore by said Maryland Casualty Company, forever harmless against all lienable claims for material furnished Bacon & Moore and used for the construction work done by Bacon & Moore under their contract with the town of Littleton.
There is no dispute that Bacon & Moore, who signed the contract judgment, owe plaintiffs for the materials sued on. The materials *257furnished by plaintiffs to Bacon & Moore were used by them under tbeir contract with the town of Littleton to install for the town a water, light and sewerage system. No lien can be enforced against a municipality for sewer system. Scheflow v. Pierce, 176 N. C., p. 91. Nor water works pumping station and electric lighting plant. Gastonia v. Engineering Co., 131 N. C., p. 363. Nor water works. See Noland v. Trustees, 190 N. C., 252. The.words lienable claim, construing the word lienable to create a lien, could not apply to the town of Littleton— statute gaye no lien. The $8,000 was turned over to the Maryland Casualty Company to save harmless the town of Littleton and Bacon & Moore against all lienable claims for material furnished, etc. There could be no such thing as a lienable claim against the to.wn of Littleton or Bacon & Moore. Plaintiffs did have a claim on Bacon & Moore for material furnished them and used by them on the contract with the town of Littleton, which the Maryland Casualty Company agreed to “promptly make payment.” This claim is unpaid and the suit in controversy is founded on the consent judgment. Bacon & Moore owes it and the Maryland Casualty Company agree to save them harmless, and has $8,000, turned over for that purpose. We think a just and righteous interpretation was that the claims against Bacon & Moore for material furnished the town should be paid out of the fund in the hands of the Maryland Casualty Company under the consent judgment, as these claims were originally “lienable” or enforcible out of the bond given by the Maryland Casualty Company. The only way the Maryland Casualty Company could save Bacon & Moore harmless is to pay this claim.
The judgment below is
Affirmed.